The U.S. State Department issued an official report on the country conditions in the Philippines in 2016 which states in part: “President Rodrigo Roa Duterte, elected in May, began the first year of his constitutionally limited six-year term on June 30. . . . Since July police and unknown vigilantes have killed more than 6,000 suspected drug dealers and users as the government pursued a policy aimed at eliminating illegal drug activity in the country by the end of the year. Extrajudicial killings have been the chief human rights concern in the country for many years and they increased sharply over the past year. https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

There is at least one mother in Hawaii whose son, who was suspected of being a drug user, was reportedly the victim of an extrajudicial killing in Ilocos Norte, Philippines after President Duterte came to power. Can the mother sue the Republic of the Philippines for the extrajudicial killing of her son and recover damages?

Aldo Vera, Jr. sued in a Florida state court the Republic of Cuba for the extrajudicial killing of his father, the former police chief in Havana, in San Juan, Puerto Rico, on October 25, 1976. Vera, Sr. had fled Cuba in the 1960s and engaged in counterrevolutionary activities in Puerto Rico and Florida. Vera Jr. alleged that agents acting on orders of the Cuban government executed Vera’s father.

Vera Jr. obtained a default judgment for §95 million against Cuba which did not appear in the action. Although foreign states are generally immune from the jurisdiction of the United States under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 USC §§ 1602 et seq., the Florida court held that Cuba was subject to suit under a statutory exception to immunity in 28 USC § 1605(a)(7), known as the “terrorism exception”. The exception authorizes suits against foreign states that sponsor certain acts of terrorism, such as extrajudicial killings and torture. 28 USC § 1605A(a)(1).

The Florida court found that Cuba ordered the extrajudicial killing of Vera’s father in retaliation for his participation in the anti-communist movement and that Cuba was designated to be a state sponsor of terrorism in 1982 and remains so designated.

Vera then filed a complaint against Cuba in the United States District Court for the Southern District of New York seeking recognition and entry of the Florida judgment pursuant to the Full Faith and Credit Act, 28 USC § 1738. Cuba failed to appear in the federal action and the District Court entered a default judgment against it for approximately §45 million.

Vera served information subpoenas on the New York branches of certain foreign banks, including BBVA. The bank refused to comply with the subpoenas’ request for information regarding Cuban assets and moved to quash the subpoena. It argued that Vera’s default judgment against Cuba was void for lack of subject matter jurisdiction under the FSIA and that the District Court lacked personal jurisdiction over BBVA. The District Court rejected BBVA’s challenge and ordered it to provide full and complete answers to Vera’s request for information on Cuban assets located in BBVA’s branches in and outside the United States. The court held BBVA in contempt when it refused to comply. BBVA appealed.

28 USC § 1604 bars state and federal courts from exercising jurisdiction when a foreign state is entitled to immunity. 28 USC § 1330 confers

jurisdiction on federal district courts only if one of the exceptions to immunity applies.

28 U.S.C. § 1605A eliminates sovereign immunity and permits suits

directly against a foreign state in any case in which money damages are sought against [the] foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if . . . engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her

office, employment, or agency.”

Even if a foreign state has engaged in one of the terrorist acts described above, however, it is not subject to suit in the United States unless the foreign state

was “designated as a state sponsor of terrorism at the time the act . . . occurred” or was later “so designated as a result of such act.” Id. § 1605A(a)(2)(A)(i)(I).

The Court of Appeals held that the District Court lacked subject matter jurisdiction over Vera’s action against Cuba because Cuba was not designated a state sponsor of terrorism at the time Vera’s father was killed in 1976, and Vera failed to establish that Cuba was later designated in 1982 as a state sponsor of terrorism as a result of his father’s death. Accordingly, the FSIA’s terrorism exception to sovereign immunity – the only potential basis for subject matter jurisdiction in this case – does not apply. Therefore Cuba was immune from Vera’s federal action and the District Court had no jurisdiction to enter judgment against Cuba and to enforce the subpoenas.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, and lived during the war in Magsingal, Ilocos Sur, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

The ordinary meaning of “sexual abuse of a minor” (oftentimes referred to as “statutory rape”) is the “engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age or mental or physical incapacity.” Merriam Webster’s Dictionary of Law 454 (1996) cited by Esquivel-Quintana v. Sessions, Supreme Court, No. 16-54, 06/31/2017.Statutory rape is different from other types of rape in that force is not necessary for conviction. Even if the victim consented to the sexual act or no force was used, the perpetrator may be convicted. The Free Dictionary by Farlex http://legal-dictionary.thefreedictionary.com/Statutory+Rape, Wikipedia https://en.wikipedia.org/wiki/Statutory_rapeOn May 30, 2017, the Supreme Court saved from deportation a 21-year old lawful permanent resident alien who had sexual relations with his 17 year old girlfriend, holding that it did not constitute “sexual abuse of a minor”. The alien had pleaded no contest to a statutory rape offense of “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” in violation of California Penal Code § 261.5(c) . “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” § 261.5(a). California defines “minor” as a “person under the age of 18 years.”Removal proceedings were instituted against the alien for having been convicted of an “aggravated felony” 8 USC § 1227(a)(2)(A)(iii). “Sexual abuse of a minor” is an aggravated felony. 8 USC § 1101(a)(43)(A). The Immigration Judge ordered the alien removed. The Board of Immigration Appeals affirmed, 26 I&N Dec 469 (2015). The Court of Appeals denied the petition for review, Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016).The Supreme Court, in a rare show of unanimity, reversed the order removing the alien, holding that sexual relations between a 21 year old man and a 17 year old girl, did not constitute “sexual abuse of a minor”. The court recalled that in 1996 when “sexual abuse of a minor” in the definition of “aggravated felony” was added to the Immigration and Nationality Act, the “generic” “age of consent” was 16 and remains so today. The court said that the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16.The Supreme Court explained that to determine whether the conviction qualifies as an “aggravated felony, the Court must employ the “categorical approach” pursuant to which the court looks to the statute of conviction rather than to the specific facts underlying the crime. Under that approach the court asks whether the state statute defining the “crime of conviction” categorically fits within the “generic” federal definition of a corresponding “aggravated felony”. Since Cal. Penal Code § 261.5(c) criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” and defines a minor as someone under age 18, the conduct criminalized would be, at a minimum, consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21.The court concluded that: “In the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” under § 1101(a)(43)(A) requires the age of the victim to be less than 16.” Esquivel-Quintana v. Sessions, Supreme Court, No. 16-54, 06/31/2017.Observation: The court attached an Appendix to its opinion listing, state by state, offenses criminalizing sexual intercourse solely because of the age of the participants and the statutory age of consent. In Hawaii it is 14 years – the youngest. HRS § 707-730(1)(b) (1993). In California, among others, it is 18 – the oldest. Cal. Penal Code § 261.5(a) (1998).

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, and lived during the war in Magsingal, Ilocos Sur, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

Chief Justice Roberts, during oral argument in a denaturalization case, noted that Question Number 22 of the Application for Naturalization asks: “Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?” He then recalled that “Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone. . . I was not arrested. . If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, guess what, you’re not an American citizen after all.”

The government lawyer replied: “First, that is how the government would interpret that, that it would require you to disclose those sorts of offenses.”

Chief Justice Roberts riposted: “Oh, come on. You’re saying that on this form, you expect everyone to list every time in which they drove over the speed limit . . .”

The government lawyer said: “If we can prove that you deliberately lied in answering that question, then yes. I think - - “

Justice Sotomayor asked if the “failure to disclose the use of a childhood nickname that is embarrassing, that has no relationship to anything whatsoever, could you prosecute that person?”

The government lawyer said that “there are a number of answers that could be given in the naturalization process that could be false and might seem to be, in isolation, immaterial, completely immaterial, for example. I mean, you could, you know, lie about your weight, let’s say. .. The point, though, is, Congress specifically attended to all false statements under oath in these types of proceedings. It has specifically provided that it is a crime to lie under oath in the naturalization process, even about an immaterial matter, and it has provided that certain of those immaterial lies are categorical bars to naturalization.”

Anyone who listened to the oral argument on April 26, 2017 could have predicted the decision of the Supreme Court – not every lie will result in denaturalization.

In a rare display of unanimity, on June 22, 2017, the Supreme Court said: “A federal statute, 18 U.S.C. § 1425(a), makes it a crime to “knowingly procure [ ] contrary to law, the naturalization of any person.” And when someone is convicted under § 1425(a) of unlawfully procuring her own naturalization, her citizenship is automatically revoked. See 8 U.S.C. § 1451(e). In this case we consider what the Government must prove to obtain such a conviction. We hold that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.” Maslenjak v. United States, No. 16-309 SC 06/22/2017. https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf

The petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia. During an interview in connection with her application for refugee status in the United States, she said that her husband evaded service in the Bosnian Serb army by absconding to Serbia. American officials granted them refugee status. Later she applied for naturalization. In her application, she swore that she had never given false information to a government official while applying for an immigration benefit or lied to an official to gain entry into the United States. Maslenjak was naturalized as a U.S. citizen. It was later discovered that Maslenjak knew all along that her husband served in the Bosnian Serb Army.

The government charged Maslenjak with knowingly procuring contrary to law her naturalization in violation of 18 U.S.C. §1425(a) because in the course of procuring her naturalization she broke another law, 18 U.S.C. § 1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding.

At Maslenjak’s criminal trial, the District Court instructed the jury that to secure a conviction under § 1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. She was convicted. The Court of Appeals for the 6th Circuit affirmed her conviction, holding that if Maslenjak made false statements violating § 1015(a) and procured naturalization, then she also violated §1425(a).

The Supreme Court reversed and remanded the case, saying “To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.”

“If the facts the defendant misrepresented are themselves disqualifying, the jury can make quick work of that inquiry. In such a case, there is an obvious causal link between the defendant’s lie and the procurement of citizenship. . . In short, when the defendant misrepresents facts that the law deems incompatible with citizenship, her lie must have played a role in her naturalization.” But “even if the true facts lying behind a false statement would not ‘in and of themselves justify denial of citizenship,’ they could have ‘led to the discovery of other facts which would’ do so.” Thus “a person whose lies throw investigators off a trail leading to disqualifying facts gets her citizenship by means of those lies – no less than if she had denied the damning facts at the very end of the trail.”

The Supreme Court noted that § 1425(a) clearly imports some kind of “causal or means-end” relation, but left that relation’s precise character unspecified. The Supreme Court pointed out that “Qualification for citizenship is a complete defense to a prosecution brought under § 1425(a).” Maslenjak was not convicted by a properly instructed jury of procuring, contrary to law, her naturalization, since the jury was told that it could convict based on any false statement in the naturalization process, that is, any violation of § 1015(a), no matter how inconsequential to the ultimate decision, although as the Supreme Court had shown the jury needed to find more than an unlawful false statement.

Comment: For more information on this issue, see the annotation: What constitutes concealment of material facts or willful misrepresentation warranting revocation of naturalization under § 340 of Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1451). 77 ALR Fed 379.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, and lived during the war in Magsingal, Ilocos Sur, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

On June 26, 2017, the United States Supreme Court, in a per curiam opinion (opinion by the whole court), granted President Donald J. Trump’s petitions for certiorari to review two Court of Appeals orders that had struck down Executive Order No. 13780 (the so-called “travel ban”) which had suspended the entry of nationals from six designated countries for 90 days. Donald J. Trump v. International Refugee Assistance Project, et al.; Donald J. Trump v. Hawaii, et al.https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

The Court also granted in part Trump’s applications to stay the injunctions issued by the two Courts of Appeals which had prevented the enforcement of his Executive Orders 13769 and 13780. The Court said “all foreign nationals are subject” to the provisions of Executive Order 13780, except “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” For individuals, a close familial relationship is required. For entities, the relationship must be formal, documented, and formed in the ordinary course. Students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too is a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.

Groups seeking to evade Executive Order 13780 will not be allowed to do so. For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

An individ­ual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States will not be barred by Executive Order 13780.

On January 27, 2017, President Donald J. Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States (EO-1).EO-1 suspended entry of foreign nationals from seven countries identified as presenting heightened terrorism risks—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days. Executive officials were instructed to review the adequacy of current practices relating to visa adjudica­tions during this 90-day period.On March 6, 2017, President Trump issued Executive Order No. 13780 (EO-2) modifying EO-1.EO–2 directed that entry of nationals from six of the seven countries designated in EO–1—Iran, Libya, Somalia, Sudan, Syria, and Yemen—be “suspended for 90 days from the effective date” of the order.

Section 212(f) of the Immigration and Nationality Act [8 USC § 1182(f)] authorizes the President whenever he finds that the entry of any aliens or of any class of aliens into the United States “would be detrimental to the interests of the United States,” to suspend the entry of all aliens or any class of aliens

or impose on the entry of aliens any restrictions he may deem to be appropriate

In International Refugee Assistance Project v. Trump, a U.S. District Court in Maryland - relying on the Establishment Clause—enjoined nationwide enforcement of all of §§ 2 and 6 of EO-2. John Doe # 1, a co-petitioner, had an Iranian wife who was seeking entry into the United States. The injunction was affirmed by the Court of Appeals for the Fourth Circuit on May 25, 2017, holding that the primary purpose of the ban was religious, in violation of the First Amendment.The government argued that the Executive Order had a “facially legitimate and bona fide” justification of protecting national security.

In Hawaii v. Trump, a U.S. District Court in Hawaii also enjoined the enforcement of EO-2.Ismail Elshik, whose Syrian mother in law was seeking entry into the United States, was a co-petitioner. On June 12, 2017, the injunction was affirmed by the Court of Appeals for the Ninth Circuit on the ground that EO-2 exceeded the President’s authority because there was no sufficient finding “that the entry of the excluded classes would be detri­mental to the interests of the United States.”

The Government argued that a 90-day pause on entry is necessary to prevent potentially danger­ous individuals from entering the United States while the Executive reviews the adequacy of information provided by foreign governments in connection with visa adjudica­tions.

APPEALS COURT JUDGMENTS WILL BE REVERSED SAYS JUSTICE THOMAS

In a concurring and dissenting opinion by Justice Thomas which was joined by Justices Gorsuch and Alito, he said that the preliminary injunctions issued by the Courts of Appeals should be stayed in full because the government meets the two most critical factors in granting a stay (1) the applicant has made a strong showing that it is likely to succeed on the merits, and (2) the applicant will be irreparably injured absent a stay. He said “I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits – that is, that the judgments below will be reversed.”

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

The Immigration and Nationality Act provides the framework for acquiring U.S. citizenship at birth by a child born outside the United States when one parent is a U.S. citizen and the other a citizen of another nation. Under 8 U.S.C. § 1401(a)(7) (1958 ed.), which was then the governing law, in the case of married couples, the U.S. citizen parent must have 10 years physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14.This rule is made applicable to unwed U.S.-citizen fathers by Section 1409(a), but not to unwed U.S.-citizen mothers. Under Section 1409(c) there is an exception for unwed U.S.-citizen mothers whose citizenship can be transmitted to a child born abroad if the mother has lived continuously in the United States for just one year prior to the child’s birth.Jose Morales, a United States citizen, moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy the requirement of Section 1401(a)(7) that he had at least five years physical presence in the United States after attaining age 14. There he lived with a Dominican woman who gave birth to Morales-Santana. Jose Morales later married Morales-Santana’s mother. Morales-Santana came to the United States. In 2000, he was placed in removal proceedings based on several criminal convictions. Morales-Santana claimed he could not be deported because he was a U.S. citizen at birth based on the U.S. citizenship of his biological father Jose Morales. An Immigration Judge denied Morales-Santana’s citizenship claim and ordered him removed. He later moved to reopen the proceedings asserting that the Government’s refusal to recognize that he derived citizenship from his U.S.-citizen father violated the equal protection guarantee of the U.S. Constitution. The Board of Immigration Appeals denied the motion. The Court of Appeals for the Second Circuit reversed, holding that the differential treatment of unwed mothers and fathers was unconstitutional. The Court of Appeals further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen.On June 12, 2017, the U.S. Supreme Court held in Sessions v. Morales-Santana, No. 15-1191, that the difference in the residency requirement for unwed U.S. citizen fathers and mothers “violates the equal protection principle”. The Court said that Sections 1401 and 1409 “date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. . . Today, laws of this kind are subject to review under the heightened scrutiny that now attends ‘all gender-based classifications’” During the era when Section 1409 was enacted (1940), “two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child.” §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.” “Those disparate criteria . . . cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.”“While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear,” the Supreme Court held that it “is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term §1409(c) reserves for unwed mothers.” The court reasoned that “if §1409(c)’s one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U. S.-citizen parent is married? Disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress.” The Court suggested that “Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five- year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.”OBSERVATION: This was a “Pyrrhic victory” for Morales-Santana. He won the argument that the different residency requirements for unwed fathers and mothers denied equal protection of the laws, but lost the case because the court could not grant him U.S. citizenship that would have been a solid defense in his deportation proceedings.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

A Filipino, Shirlene De La Cruz Ostrov, who recently retired as a Colonel in the U.S. Air Force, captured the chairmanship of the Hawaii Republican Party (Grand Old Party or GOP) at a tumultuous convention on the island of Kauai on May 13.

Ostrov’s election is significant in a number of ways. She is the first Filipino to lead a state organization of one of the major political parties in America.

She was fighting the entrenched establishment of the Republican Party in Hawaii who had put up an incumbent state legislator, Andria Tupola, as their candidate. As we told Ostrov, “if this were a beauty contest, you would win hands down.” She won 265 to 111 because of good strategists, like Miriam Hellreich, Republican National Committeewoman for Hawaii. They conducted a grass roots operation among the delegates. The majority of the GOP in Hawaii also wanted a person with proven leadership qualities and a vision for the party. More significantly, the GOP sought a leader who could attract non-Caucasians to join, especially the Filipinos who are the biggest non-white voting bloc in Hawaii.

Shirlene’s only political experience was as a U.S. congressional candidate for the first district of Hawaii. She said that she ran against overwhelming odds because she did not want the election to be uncontested. As it turned out, she could not prevail against a well-known, well-funded, and union backed Democrat who had previously served in the House of Representatives – Colleen Hanabusa.

The Hawaii Republican Party is the minority party in Hawaii. Ostrov said that she sought the chairmanship “because I want to help build our Party to become the true opposition party in this state. Now we’ve obviously got a steep hill to climb. With only five Republicans in the State House of Representatives and none in the Senate, we struggle to get our voices heard. And we aren’t represented in our Congressional Delegation, a daily tragedy for Hawaii with Republicans in control of the U.S. House and Senate, and the White House.

In an op-ed in the Honolulu Star Advertiser on May 4, Shirlene was quoted as saying: “The Hawaii Republican Party is not just the party of no, nor are we simply the party of tax cuts. I believe we’re the party of aloha and ohana. . .We are the party that wants to see every resident thrive so they can build their business, family and community without excessive government interference. That’s the future we see for Hawaii.”

Shirlene, who, since her retirement, has become a business executive, and a co-founder of a non-profit Hawaiian Cultural School in the National Capitol Region said: “I think Hawaii’s Republicans have an excellent opportunity to rebuild and offer voters a real choice. My intent is pure and simple. I don’t have a private agenda. I am not seeking fame or fortune, I am not pursuing other positions at this time. I simply want to serve the party in a full-time manner to help the Republicans take their rightful place in Hawaii.

Shirlene pointed out that “the most critical aspect of building a solid foundation is to get the party on a firm financial footing. We are supposed to be a sharp contrast to the Democrats, offering viable, workable alternatives that energize the state’s residents to want our solutions and not continue with what we already know doesn’t work. Our financial underpinning helps us speak our message broadly, and I know we are at a critical financial crossroads today. In fact, I believe that this is one of the main reasons why the Hawaii Republican Party has been in decline for the last few years and it will be a primary area of focus for me as chairman.”

Immediately after her election as chairman, Shirlene went to Washington, D.C. to meet with Republican Party leaders and communicated with them her plans for the party in Hawaii. She said that they expressed their optimism and committed to providing support and resources to rebuild the local party.

Even the Honolulu Star Advertiser, a pro-Democrat newspaper, has taken notice of Shirlene. It published a ¾ page interview of Shirlene in its May 26 issue. And on May 16, the Start Advertiser published an editorial titled “Root for isle GOP to regain footing”. The editorial pointed out that “The state needs more individuals with distinct perspectives to enter the political conversation, holding power but not beholden to the entrenched leadership of the majority party. Long-term incumbency means public servants who worry too little about service to the electorate.” The editorial went on to state that “Ostrov, born and raised in Hawaii, is a retired Air Force colonel; leadership experience is a plus, even given her lack of elected office.” Unusual words of wisdom coming from the Star Advertiser. I might postpone cutting off my subscription.

(Photo: Shirlene Ostrov and Emmanuel S.Tipon)

ATTRACTING FILIPINOS TO THE REPUBLICAN PARTY

Shirlene stressed that “Education and outreach in the community is key to our success as a party. Not only will we increase transparency and accountability within party leadership, but sharing our points of view will attract more members from the growing ranks of disillusioned or disengaged Independents and Democrats looking for a conservative home. We need those numbers in our party and their votes in the next election, votes that will come from the conservative cultures and people the Democrats have taken for granted. Two districts out of 51 are Districts 28 and 29, the Kalihi and Palama areas. Those areas are 78% Filipino, and not only are they the largest voting bloc in Hawaii, they are also very, very conservative. They are Democrats now, but they are starting to understand that their voting habits are clashing with their conservative culture. Education in the community will attract people whose family values and cultural background align more naturally with the Republican Party, if they hear us talk with them regularly as we share our message. With a diverse staff that starts with a broad range of ideas, we will articulate a message that covers the values and issues most people in our state care about and that the opposition isn’t even paying attention to.

PERSONAL AND FAMILY BACKGROUND

Shirlene’s father is from Batangas and her mother is from Bulacan. Her father joined the U.S. Navy in the Philippines, became a U.S. citizen in 1962 and settled in Hawaii. Shirlene was the fifth of 8 children (6 girls and 2 boys). Shirlene was born and raised in Mililani, among the pineapple fields of Central Oahu, Hawaii. She said that her parents raised a “very tight-knit Catholic, conservative and patriotic family” who taught their children “to defend the institutions and the virtues of character that make the pursuit of happiness possible.” Shirlene recalled that “the kitchen table discussion revolved around the different ways to secure the blessings of liberty to ourselves and our posterity. It was an easy decision for me to serve my country in the United States Air Force.”

She served for 23 years and retired as a Colonel. As a seasoned Logistics Readiness Officer, she held command and staff positions at the U.S. Air Force and

and Department of Defense. She served as the Commander of an Aircraft Maintenance Squadron, and as the Commander of an Air Mobility Squadron unit in the Pacific. She commanded the 376th Expeditionary Mission Support Group, providing air combat power projection throughout the CENTCOM Area of Responsibility, and also served as a hub for strategic airlift operations and as an intermediate staging base for transiting personnel and equipment in support of operations in Afghanistan. She served the U.S. State Department in support of the U.S. Special Envoy to Sudan and also served as the Legislative and Interagency Liaison for USTRANSCOM in Washington DC. She likewise served as the Chief of the Global Combat Support Division at Headquarters, Pacific Air Forces.

Among Shirlene’s military awards are the Legion of Merit, Bronze Star, Defense Superior Service Medal, Air Force Meritorious Service Medal, Joint Service Commendation Medal, and Air Force Outstanding Unit Award.

Shirlene earned a Bachelor’s Degree in Political Science from the University of Florida, an MBA in Management from Troy State University and a Masters of Arts in Organizational Management from George Washington University.

She married her husband Mark Jacob Ostrov in 1990 and they have twin daughters, Jessica and Julia who are 16 years old.

You have filed your immigration petition for your beautiful beloved with USCIS, but USCIS has been sitting on it. Rival suitors are knocking at your beloved’s door, saying “Your balikbayan lover is a fake. He has not filed a petition for you. It has been a year and you still have no news about it. Let us go out and have fun.”

Your beloved sends you the above Facebook message. What are you going to do? You are getting desperate. You cannot control the events happening abroad. What if your beloved succumbs to the temptation to go out with other suitors. What if ….. Patay kang bata ka.

Here is what you can do. First, follow up the petition with USCIS. Second, make an appointment on InfoPass to talk to an immigration officer in person. Write to your U.S. Senator or congressman to help find out the status of your petition? (Unfortunately in Hawaii, not one of them is a Republican, so your guess is as good as mine as to what weight they carry). All that USCIS says is that your petition is under process.

There is a book called “Sue the Bastards” by Gerard P. Fox. It analyzes the pros and cons of suing those who do you harm. After reading it, you feel like Hamlet – “To be or not to be.” (To sue or not to sue). If you really love your so-called “beloved” (wife or fiancée) and want to protect your interest, damn the cost and the problems of suing, just sue the USCIS for sitting on your immigration petition by using a mandamus action.

The term “mandamus” is a Latin word “we command”. “It is a writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.” The Free Dictionary by Farlex.

JURISDICTION

Under 28 U.S.C. §1361 “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the petitioner.”

This statute simply provides a forum for filing mandamus against an officer of the United States. However, it does not provide a legal ground for suing. The person suing, in this case the petitioner, must allege a legal basis for the suit and standing to bring it.

The Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq. provides a cause of action for the petitioner where the USCIS unreasonably delays the adjudication of a petition or application. “The APA requires federal administrative agencies to address matters presented to them within a reasonable time. 5 U.S.C. § 555(b) ("With due regard for the convenience and necessity of' the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. . . ."). The APA further states that federal courts "shall . . . compel agency action unlawfully withheld or unreasonably delayed. . . ." 5 U.S.C. § 706(1). Belegradek v. Gonzalez, 523 F. Supp. 2d 1364 (N.D. Georgia)

In Razaq v. Poulos, No. 06-2461-WDB, 2007 WL 61884, at *3 (N.D.Cal. Jan. 8, 2007), the court said: "We find that the USCIS has a mandatory duty to decide whether to grant or deny 1-130 Petitions. . . . While the substance of the decision whether to grant or deny a petition obviously is discretionary, the duty to process the application is just as obviously ministerial." Thus, while mandamus is available to compel a USCIS officer to act on a petition, it cannot compel the officer to act or decide in a particular way, that is, it cannot compel the officer to grant the petition.

WHAT CONSTITUTES UNREASONABLE DELAY

"[T]here is no bright line rule as to when a delay on an application slips into the realm of unreasonableness." Linville, 489 F.Supp.2d at 1282 (quoting Elmalky v. Upchurch, No. 3:06-CV-2359-B, 2007 WL 944330, at *6 (N.D.Tex. Mar. 28, 2007)). In determining whether the Attorney General unreasonably delayed in adjudicating an application to adjust immigration status, courts have applied a rule of reason, considering: (1) the source of the delay, (2) the complexity of the investigation, (3) whether any party participated in delaying the proceeding, (4) the nature and extent of the interests prejudiced by the delay, and (5) whether expediting action on agency activities will have an adverse affect on higher or competing priorities. See Linville, 489 F.Supp.2d at 1282-83; Razaq, 2007 WL 61884, at *6; Bartolini v. Ashcroft,226 F.Supp.2d 350, 354 (D.Conn.2002).” Belegradek v. Gonzalez, 523 F.Supp. 2d 1364 (N.D. Georgia).

ALLEGATIONS OF PETITION

Earlier this week, a Caucasian colleague asked us to assist in filing a petition for mandamus to compel USCIS to adjudicate an I-130 petition filed by an alien’s U.S. citizen spouse which had been pending in the USCIS for more than a year.

3. Venue (where to file petition) – any judicial district where respondent resides, or where petitioner resides, or where a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C § 1391(e).

4. Parties – Petitioner is the person who filed the Visa Petition that has been unadjudicated. Respondents are: the Secretary of the Department of Homeland Security, the USCIS Director in Washington, D.C., the USCIS Director of the Service Center where petitioner filed the Visa Petition. Their office addresses should be provided.

5. Cause of action and standing (a) clear legal right of the petitioner to the relief demanded, (b) clear legal and ministerial duty of the respondent to perform the act sought to be performed, See 5 U.S.C. §§ 551 et seq. (Administrative Procedure Act), (c) exhaustion of all other remedies available, (d) absence of any other remedy available, except mandamus, (e) irreparable injury to petitioner because of respondent’s unreasonable failure to act and perform a duty owed to petitioner.

6. Claim for attorney’s fees and costs pursuant to 28 U.S.C § 2412.

7. Prayer for relief – request court to order respondent to process petition or application, to furnish petitioner with a copy of the order granting or denying the visa petition, to order respondents to pay attorney’s fees and costs, to award such other relief as may be just and proper.

8. Verification of petition by petitioner.

Summons on respondents. In addition to serving the petition on the above-named respondents, service of the summons should also be made on the Office of the General Counsel, Department of Homeland Security, Washington, D.C. 20258.

Filing requirements. Petitioner or his Counsel must read the Federal Rules of Civil Procedure and the U.S. District Court local rules.

Filing fee. There is a filing fee. Petitioner or his Counsel should check the amount with the District Court where he intends to file the petition.

COMMENT AND SUGGESTION: In a previous case where a District Director unreasonably refused to adjudicate an application for adjustment of status, we prepared a complaint for mandamus, naming him as one of the respondents, and showed the complaint to him. He asked for a week to review the complaint. In less than a week, the adjustment of status was granted. However, do not try to bluff a District Director that you are going to file a complaint, unless you know him well and unless you have a copy of the complaint to show to him, the filing fee in your hand, and your attorney’s fees paid by the client.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

]]>contact@sp3media.com (PhilippineNews)Atty. Emmanuel S. TiponSat, 20 May 2017 23:43:06 -0700What if Hillary had won and issued a travel ban?http://philippinenews.com/index.php/immigration/atty-emmanuel-tipon/item/226-what-if-hillary-had-won-and-issued-a-travel-ban
http://philippinenews.com/index.php/immigration/atty-emmanuel-tipon/item/226-what-if-hillary-had-won-and-issued-a-travel-ban

“Must a government be too strong for the liberties of its people or too weak to maintain its own existence?” – Abraham Lincoln

What if Hillary Clinton had won the presidency and had issued a travel ban against citizens of certain Muslim majority nations, what would the Democrats and their allies in the liberal, biased, pro-Democratic Party, media have said? Instead of jeers as their reaction to President Trump’s travel ban, they would be saying “cheers”. “She is strong on defense, strict on immigration.” It was the Obama administration that had identified the particular nations as potential sources of terrorists. Nobody would have sued her to stop the ban. It is the states where Hillary won that sued Trump – like Hawaii and Washington.It is unfortunate that the protection of the American people, which President Trump promised during his campaign, has become politicized. Anything that President Trump does has been attacked. If he were to give a thousand dollars to everybody in the United States, he would be criticized: “Why not give a hundred thousand dollars.” And if he were to give a hundred thousand dollars, he would still be criticized: “Why not give a million dollars?”

FEDERAL JUDGES DIVIDED ON TRAVEL BANYou might not read or hear about this in the liberal, biased, pro-Democratic Party, media, but federal judges are divided on the issue of the validity of the travel ban, which would suspend for 90 days the entry of nationals from six countries, which were pinpointed by the Obama administration, to enable consulates abroad to conduct extensive background checks.On March 15, 2017, a federal judge in Hawaii, Derrick Watson, issued an order granting a motion for temporary restraining order enjoining President Trump and officers of the United States from enforcing or implementing Sections 2 and 6 of Executive Order across the Nation. The judge posed the issue thus: National security is unquestionably important to the public at large, but the plaintiffs and the public have a vested interest in the “free flow of travel, in avoiding separation of families, and in freedom from discrimination.” The question is: do the nationals of these 6 countries (and for that matter any country) have freedom to travel to America? Who gave them that right? If so, can citizens of the Philippines living abroad have freedom to travel to America? If their visa applications are denied, will the State of Hawaii sue on their behalf because they have “a vested interest in the free flow of travel”? Many Filipinos have been separated from their families living in the United States. Will the State of Hawaii also sue on their behalf to avoid separation of families?On the other hand, on March 24, 2017, a federal judge in Alexandria, Virginia, Judge Anthony Trenga, refused to block President Trump’s revised executive order. Judge Trenga pointed out that the issue was not whether the order “is wise, necessary, under- or over-inclusive, or even fair” but whether the order “falls within the bounds of the President’s statutory authority or whether the President has exercised that authority in violation of constitutional restraints.” He noted that there is no “facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent.” The judge indicated that the court cannot conclude for the purposes of the motion that these statements, together with the President's past statements, have effectively disqualified him from exercising his lawful presidential authority." See https://www.docdroid.net/zXkmJ4O/sarsour-opinion.pdf.htmlJudge Trenga said that “Congress has the exclusive constitutional authority to create immigration policies.” In exercising that authority, Congress has enacted Section 212(f) of the Immigration and Nationality Act which provides:“(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”Congress has already spoken in clear and certain terms. It vested upon the President the power and duty to “suspend” the entry of all aliens or any class of aliens as “he may deem to be appropriate”. The law does not say, as “he may deem to be appropriate with the approval of the courts.” The President is the sole judge of when to “suspend” the entry of aliens. The law does not give the courts any say on this matter, otherwise Congress would have said so. Expresio unius, est exclusio alterius. (The express mention of one thing excludes all others). Judge Trenga said that “the President has unqualified authority to bar the physical entry to the United States at the border”.Five U.S. Court of Appeals judges of the Ninth U.S. Circuit Court of Appeals who supported a rehearing en banc (by the full court) of the travel ban case (after a 3-judge panel refused to lift the injunction against the first travel ban) led by Judge Jay Bybee said that President Trump’s Executive Order of January 27, 2017, suspending the entry of certain aliens, “was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency,” and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Judge Bybee emphasized that “The exclusion of aliens is a fundamental act of sovereignty.” Judge Bybee pointed out that: "We are judges, not Platonic guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decision to permit or forbid entry into the United States, to the President and Congress."http://cdn.ca9.uscourts.gov/datastore/general/2017/03/15/17-35105%20en%20banc.pdf?platform=hootsuite

MOTIVE OF LAWMAKER IS NOT A FACTOR IN JUDGING VALIDITY OF LAWJudges against the travel ban claim that Trump was motivated by anti-Muslim sentiments in imposing the travel ban. They cite Trump’s campaign speeches. Trump clarified in his campaign speeches that what he meant was “extreme vetting” (background check).The Hawaii judge in his order blocking President Trump’s Executive Order acknowledged that the Government appropriately cautioned that “courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decision makers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts.’The Virginia judge refused to psychoanalyze President Trump for his motives in issuing the travel ban.If psychoanalyzing lawmakers was allowed, one could challenge the anti-dog eating laws of certain states as unconstitutionally motivated against ethnic origin and race by psychoanalyzing the legislators to unveil their “veiled psyche” and “secret motive” to discriminate against nationals of certain Asian countries.OBSERVATION: In a letter to the editor of a Hawaii newspaper with Democratic leanings on 3/26/2016, the female writer said that Hawaii Judge Watson was a classmate of former President Obama and that Obama was coincidentally in Hawaii when the Judge issued his temporary restraining order (TRO). But in another letter to the editor of the same newspaper, the woman writer was quick to point out that there is no connection with the issuance of the TRO. As Hamlet’s mother remarked: “The lady doth protest too much, methinks” Me says nobody is claiming that one plus one equals TRO.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

]]>contact@sp3media.com (PhilippineNews)Atty. Emmanuel S. TiponTue, 28 Mar 2017 08:37:42 -0700What’s Up Attorney? Was Secretary Yasay telling the truth about U.S. citizenship? Or how to lose U.S. citizenship without really tryinghttp://philippinenews.com/index.php/immigration/atty-emmanuel-tipon/item/188-what-s-up-attorney-was-secretary-yasay-telling-the-truth-about-u-s-citizenship-or-how-to-lose-u-s-citizenship-without-really-trying
http://philippinenews.com/index.php/immigration/atty-emmanuel-tipon/item/188-what-s-up-attorney-was-secretary-yasay-telling-the-truth-about-u-s-citizenship-or-how-to-lose-u-s-citizenship-without-really-trying

“Less talk, less mistake; No talk, no mistake,” Genaro Magsaysay reportedly said when asked to talk about the issues while he was running for a Philippine Senate seat. He won.

The Commission on Appointments on March 8, rejected the ad interim appointment of Attorney Perfecto R. Yasay, Jr as Philippine Secretary of Foreign Affairs after he refused to answer a Commission member’s question to “categorically answer 'yes or no,' whether at one point in time in your life, were you ever an American citizen? Just a yes or no.” Yasay had replied: "I wish I could answer that question with a yes or no, but as directly as I could in answering that question, I have always admitted that I was granted US citizenship. That is my answer." "I was granted US citizenship on November 26, 1986, but it is my position that that grant of US citizenship at that time was void ab initio on the basis of the explanation I have stated in my affidavit.”http://www.rappler.com/nation/163666-duterte-appoints-enrique-manalo-acting-foreign-secretaryYasay reportedly said in a prior interview: “But at that time I was granted US citizenship, I had a “preconceived intent” of returning back to the Philippines.” He reportedly said that taking the oath of citizenship “does not make me a US citizen if precisely the basis upon which the grant of American citizenship is flawed and is defective." "I would not have and I did not acquire legally American citizenship. It is precisely for that reason that three months after, in January 1987, I returned back to the Philippines." "And this consolidated the position that I did not legally acquire US citizenship and I returned all of my papers, executed an affidavit, telling the American authorities that I did not qualify." He said that under American law, one is "disqualified for being an American citizenship" if at the time of application or granting, one had the "preconceived intent of abandoning your US residency and in fact you abandon your US residency within two years after obtaining that U.S. citizenship."http://news.abs-cbn.com/news/03/06/17/yasay-i-did-not-acquire-us-citizenship-legally

The question remains - Was Mr. Yasay ever an American citizen from an objective, not subjective (or from his own), point of view? If he was, when did he cease to be one?On November 24, 1986, Yasay took his oath as a United States citizen. On January 8, 1987, Yasay returned to the Philippines and “abandoned” his U.S. residency. On February 23, 1993, Yasay signed an affidavit that he had abandoned his residency in the United States in 1987, thereby becoming "ineligible" for U.S. citizenship. In March 1993, Yasay was appointed as an associate commissioner of the Philippine Securities and Exchange Commission (SEC). On June 28, 2016, Yasay renounced his American citizenship before an American consular official in Manila. On February 22, 2017, Yasay told the Commission on Appointments that his 1993 affidavit stating that he had abandoned his U.S. residency "nullified" his oath of allegiance to the U.S., thus he "did not acquire legal status as a U.S. citizen."The question has arisen: why did Mr. Yasay have to formally renounce his U.S. citizenship before a U.S. consular official in Manila on June 28, 2016 if the grant of U.S. citizenship to him on November 24, 1986 was “void ab initio” because he had a “preconceived intent” of returning back to the Philippines?

CONCEDING U.S. CITIZENSHIP BUT ADMITTING ITS SUBSEQUENT LOSSWould Mr. Yasay’s appointment have been confirmed if he had simply said “yes” - that he became an American citizen in 1986 when he took the oath as a naturalized American citizen, but lost his American citizenship (or nationality) in March 1993 when he was appointed as a Commissioner of the Securities and Exchange Commission and took an oath of allegiance to the Philippines, citing Sec. 349(a)(4) of the U.S. Immigration and Nationality Act [8 U.S.C. 1481(a)(4)] which provides in relevant part:(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-Xxx xxx xxx(4) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or”Mr. Yasay, by “accepting, serving in, or performing the duties of” a Commissioner, either (a) acquired Philippine nationality or citizenship, or (b) took “an oath, affirmation, or declaration of allegiance” to the Philippines. Therefore, he lost his American citizenship at that time.OBSERVATION: According to some observers, Mr. Yasay took the position that his naturalization as an American citizen was void ab initio (from the beginning) to prevent any charge that he was occupying a government position (SEC commissioner) and running for office (senator and vice president), even though he was a U.S. citizen. But such a charge could not successfully be made because he automatically lost his U.S. citizenship when he was appointed as SEC Commissioner and took the oath of allegiance to the Philippines.Mr. Yasay posted this on Facebook: “I faithfully did my duties and responsibilities in the service of our country the best way I could, the best way I know how, with honor, dedication, fairness, competence, dignity, and respect.”Many wish Mr. Yasay had consulted an honest and competent counsel who knows U.S. Immigration and Nationality Law, especially Sec. 349(a)(4).MORAL LESSON: People facing a legal issue should hearken to Abraham Lincoln’s comment about a person representing himself. See https://www.avvo.com/legal-guides/ugc/abraham-lincoln-had-it-right---he-who-represents-himself-has-a-fool-for-a-client

OTHER GROUNDS FOR LOSING AMERICAN NATIONALITYOther grounds for losing American nationality under Sec. 349 are:(1) obtaining naturalization in a foreign state; or(2) taking an oath or making an affirmation of allegiance to a foreign state; or(3) entering, or serving in, the armed forces of a foreign state; orXxx xxx xxx(5) making a formal renunciation of nationality before a diplomatic officer of the United States in a foreign state; or(6) making a formal written renunciation of nationality whenever the United States is in a state of war; or(7) committing treason against, or attempting by force to overthrow, or bearing arms against, the United States.(b) The burden is upon the party claiming that loss of nationality occurred to establish such claim by a preponderance of the evidence. Any person who performs any act of expatriation shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act was not done voluntarily.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

“We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard.” – President John F. Kennedy, on why we should fly to the moon.On June 29, 2016, Ferdinand “Bongbong” Romualdez Marcos, Jr. filed an election protest against Maria Leonor “Leni” Gerona Robredo, who was proclaimed the winner for the position of vice president of the Philippines in the May 9 election by a reported margin of 263,473 votes. This is considered a small margin by most observers. Robredo reportedly obtained 14,418,817 votes to Marcos’ 14,155,344 votes.Marcos personally filed his protest with the Presidential Electoral Tribunal (PET) at the Supreme Court accompanied by hundreds of supporters. The petition consisted of more than 1,000 pages with about 20,000 pages of supporting documents. The Supreme Court is also the Presidential Electoral Tribunal.He questioned the results in 39,221 clustered precincts in 25 provincesand 5 cities, which involve about 9 million votes. He asked for the reopeningof the ballot boxes and a recounting of the ballots.The protest is based on three grounds: (1) defective vote counting machines; (2) traditional modes of election irregularities, like vote buying, intimidation, pre-shading of ballots, failure of elections, etc.; and (3) unauthorized introduction by an employee of Smartmatic (the vote counting machine provider) of a new “hash code” or script program into the transparency server of the system resulting in changes in the vote count. Marcos claimed that the votes presumptively obtained by

Robredo were the products of various electoral frauds and irregularities and that Marcos’ votes were significantly reduced to make it appear that he only placed second. He claimed that about 3 million votes were taken from him. Marcos asked the PET to annul the proclamation of Robredo as vice president and to proclaim him instead as the duly elected vice president.

Two losing vice presidential candidates in earlier elections filed election protests challenging the “winning candidate” – Loren Legarda v. Manuel de Castro, and Mar Roxas v. Jejomar Binay. Nothing came out of their protests. Will the Marcos protest fly? Based on the allegations, it will fly. But how far will it fly? If there is a will there is a way to reach the destination despite strong headwinds, such as:1. Money. Many people believe that the Marcoses have billions of money. But where is the money and do they have access to such money? People wonder whether Marcos used everything necessary during the campaign? According to an observer, why did he not go to Duterte (who reportedly expressed reluctance to run for lack of money) and say, “Rody, let’s run together. Here is 50 million pesos to start with. If you agree, I will give more and finance the campaign.” Marcos would have won easily with Duterte. For the protest, is Marcos ready, willing, and able to spend at least 100 million pesos or whatever it takes to bring the protest to a successful conclusion? Will he and can he legally accept contributions to finance the protest?2. Evidence. Does Marcos have relevant, credible, and admissible evidence to establish by the required standard of proof that the alleged election irregularities occurred and that they materially affected the outcomeof the election to the prejudice of Marcos, in that without such irregularities Marcos would have won? Marcos says he has “clear and convincing evidence”. Veremos. 3. Time. How long will it take for the PET to decide the case? Robredo will ask for an extension of time to file an answer and counter-protest. The presentation of evidence by Marcos will take many months. Then Robredo will present evidence to support her counter-protest, which will take months. Robredo is expected to do everything to delay the case. She will challenge every ballot, object to every exhibit, cross-examine every one who signed an affidavit, and question every step taken by Marcos. She will file motions for postponement. Unlike American courts, Philippine courts are generous in granting postponements. Marcos reportedly said that he believes the PET will not take long to resolve this case because he has plenty of evidence and he has taken a different approach. How different is his approach from those of Legarda and Roxas in their protests? Marcos submitted as part of his petition the voluminous documents constituting his evidence. This is a good legal strategy because these pieces of evidence now form part of the record. The PET cannot simply ignore them, although it could strike them out.If Marcos will simply ask the PET to have the questioned ballots inserted in at least 100 untampered vote counting machines and get the total votes, then the protest can be finished in a month. But if the result is against him and he presents evidence to establish the other grounds of the protest, then it will take a lot of time. However, it can be speeded up if he avails fully of pretrial discovery methods frequently used in the U.S. but rarely used in the Philippines.4. Impartial tribunal. Will the PET be a fair and impartial tribunal? Or will it be beholden to former President Aquino who appointed most of its members? It has been said that Robredo was Aquino’s “Plan B” (actually it was “Plan C”) to perpetuate his party in power - if Roxas could not win, at least Robredo would be made to win. Then in a reportedly sinister plot Duterte would be impeached or otherwise taken care of and Robredo would become president. The real “Plan B” was to elect Grace Poe. Thus, even though she was not qualified to be president, a majority of the Supreme Court, all Aquino appointees, held that she was qualified. If this same majority remains in the Supreme Court to hear and decide the Marcos protest, can Marcos expect a fair and impartial adjudication of his protest? As Judge Posner pointed out in his book “How Judges Think,” the U.S. Supreme Court is a “political court”. The justices decide cases according to the position of the political party of the President who appointed them, according to John Dean, former counsel of President Nixon.

The same mightbe said of the Philippine Supreme Court (which is also the PET). The latest news is that the Marcos protest has been assigned to the newest appointee to the Supreme Court who was Aquino’s classmate. Many believe that President Duterte will “help” Marcos because they are friends and that he would be more comfortable with Marcos as vice president. What this “help” will be has not been articulated. One way is to have the Comelec investigated. Another is to have a Supreme Court (PET) majority not beholden to Aquino. 5. Robredo appears likable. To make an election protest really fly, it must be propelled by righteous indignation against the cheater. Robredo might have benefitted from cheating, but is there any allegation that she did the cheating? Robredo seems to be a likable person. We have not seen her in person but she appears on television to have charm and grace. She is acceptable as vice president to millions.

There does not appear to be a strongdesire to “kick the rascal out” since she is no rascal. What happens to the Marcos protest if 3 years from now it has not been decided and Marcos runs for the Senate or if one year from now President Duterte appoints Marcos to a government post? Will PET dismissthe protest for abandonment? The PET did this in the case of Miriam Defensor Santiago against Fidel Ramos when she ran for the Senate. Santiago challenged the PET’s decision but the Supreme Court (which was also the PET) held that she had abandoned her “determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate.” Santiago v. Ramos, 253 SCRA 55 (1996). Under that silly decision, one who files a protest cannot even get a job to be able to eat and to finance the cost of the protest otherwise the protest will be deemed abandoned. This is another example of “Famous Cases Make Bad Law.” PET should allow the protest to continue even if Marcos gets a job.

The people deserve to know the truth. (Atty. Tipon has a Master of Laws degree from Yale Law School and aBachelor of Laws degree from the University of the Philippines. He is co-author of the best-seller “Winning by Knowing Your Election Laws” published by Rex Publishing. He writes columns for Filipino-American newspapers and co-hosts “The Tipon Report,” Honolulu’s most witty and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration and other federal laws. . Tel. 808-225-2645. E-mail: filamlaw@yahoo.com)Marcos v Robredo-will fly